Citation Nr: 0607051
Decision Date: 03/10/06 Archive Date: 03/23/06
DOCKET NO. 99-04 960 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for hepatitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Rose, Counsel
INTRODUCTION
The veteran served on active duty from September 1965 to
September 1967.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an April 1998 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas. The veteran testified before a Decision Review
Officer (DRO) at the RO in October 1999. In July 2004, the
Board reopened the service connection claim for hepatitis C
and remanded this issue for further development.
In July 2004, the Board also denied the issues of entitlement
to a compensable evaluation for osteochondroma, right little
finger, postoperative, prior to January 17, 2003, entitlement
to an increased evaluation for osteochondroma, right little
finger, postoperative, evaluated as 10 percent disabling, and
entitlement to service connection for a back condition.
Therefore, these claims are no longer on appeal.
FINDING OF FACT
Competent medical evidence demonstrates no relationship
between the veteran's hepatitis and active duty service.
CONCLUSION OF LAW
Hepatitis was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1101, 5102, 5103, 5103A, 5107 (West Supp.
2005); 38 C.F.R. § 3.303 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to notify and assist
As required by 38 U.S.C.A. § 5103(a), prior to the initial
unfavorable agency of original jurisdiction (AOJ) decision,
the claimant must be provided notice consistent with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim, or
something to the effect that the claimant should give us
everything you've got pertaining to your claim.
In the instant case, the initial unfavorable agency decision
was made prior to the veteran receiving proper notification.
However, upon review, the Board finds that the lack of such a
pre-agency of original jurisdiction-decision notice did not
result in prejudicial error in this case. Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
After the claim was reopened, the RO issued letters dated in
July 2004 and November 2004, in which VA fully notified the
veteran of what is required to substantiate his claim.
Together, the letters and the July 2005 supplemental
statements of the case (SSOC) provided the veteran with a
summary of the evidence, the applicable laws and regulations,
and a discussion of the facts of the case. The veteran was
explained the basis for the denial. VA specifically notified
the veteran that VA would obtain all relevant evidence in the
custody of a federal department or agency, including VA, Vet
Center, service department, Social Security, and other
federal agencies. He was advised that it was his
responsibility to either send medical treatment records from
his private physician regarding treatment, or to provide a
properly executed release so that VA could request the
records for him. It is therefore the Board's conclusion that
the veteran has been provided with every opportunity to
submit evidence and argument in support of his claim, and to
respond to VA notices. The duty to notify the appellant was
satisfied under the circumstances of this case. 38 U.S.C.A.
§ 5103. Mayfield, supra.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2005).
In the present case, the pertinent evidence includes the
service medical records, service personnel records, numerous
VA medical records, private medical records, VA examination
report dated in December 2004, as well as written statements
and testimony from the veteran. It does not appear that
there are any other additional records that are necessary to
obtain before proceeding to a decision in this case.
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the veteran in developing
the facts pertinent to the issues on appeal is required to
comply with the duty to assist. 38 U.S.C.A. §§ 5103 and
5103A; 38 C.F.R. § 3.159.
II. Service Connection
The veteran contends that he is entitled to service
connection for hepatitis as a result of service.
Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110 (West Supp. 2005). For the
showing of chronic disease in service, there is required a
combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic."
Service connection may be also granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2005).
Service connection connotes many factors, but basically, it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service. A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease in service. See Pond v.
West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App.
247, 253 (1999).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107
(West Supp. 2005). A veteran is entitled to the benefit of
the doubt when there is an approximate balance of positive
and negative evidence. See also, 38 C.F.R. § 3.102. When a
veteran seeks benefits and the evidence is in relative
equipoise, the veteran prevails. See Gilbert v. Derwinski, 1
Vet. App. 49 (1990). The preponderance of the evidence must
be against the claim for benefits to be denied. See Alemany
v. Brown, 9 Vet. App. 518 (1996).
In statements and testimony, the veteran asserts that he had
hepatitis in service. However, service medical records are
negative for any treatment or diagnosis of hepatitis. No
diagnosis was given in the Report of Medical Examination
dated in August 1967.
VA hospital records dated in July 1968 indicated that the
veteran complained of having dark urine a year prior. Upon
admission into the hospital, the veteran complained of having
a two-week history of dark urine, light tan stools, fever,
anorexia, nausea, vomiting, lower abdominal pain, and
icterus. Liver biopsy revealed viral hepatitis. The veteran
was diagnosed with viral hepatitis.
There are no pertinent medical records until 2001, where the
veteran was suspected of having hepatitis C. VA medical
records dated from 2001 to 2003 contain several references to
possible diagnoses of hepatitis. In a May 2002 clinical
note, the VA physician noted that the veteran has a history
of hepatitis C. The central issue in this case is whether
the veteran's hepatitis is related to service.
The only etiological medical opinion addressing whether the
veteran's hepatitis is related to his active service is from
the December 2004 VA examination report. The examiner
described in detail the medical history of the veteran,
including the VA hospital records from 1968. It was
acknowledged in the report that the veteran believed he had
jaundice in service. However, the examiner noted that no
diagnosis of jaundice or hepatitis was indicated in service.
After examining the veteran, the examiner diagnosed viral
hepatitis diagnosed and treated in 1968. Type undetermined,
but studies on two occasions for hepatitis C virus were
negative in 2001.
The examiner opined that it is less likely than not that the
dark urine and other clinical features complained of in
service were due to the subsequent hepatitis that was
diagnosed in 1968. The examiner noted that jaundice was not
treated or diagnosed in service, or not until his
hospitalization after service in 1968.
Current evaluation noted that the veteran complained of
having multiple gastro-intestinal complains such as
associated fatigue, anxiety, depression, a 12 pound weight
loss over the last year, and abdominal soreness. However,
examination revealed no enlargement of the liver or the
spleen and no distention. The examiner further explained
that the veteran has had no specific treatment for hepatitis
other than the hospitalization in 1968. In addition, the
examiner noted that the veteran's viral hepatitis diagnosed
in 1968 is not hepatitis C.
The Board finds the examiner's opinion in December 2004 to be
competent medical evidence as it was based on review of
record, particularly service medical records, the 1968
hospital records, other post-service medical records, and
examination of the veteran. The opinion is corroborated by
the findings from the record that fails to show any treatment
or diagnosis of hepatitis in service and not until 1968. The
Report of Medical History dated in August 1967 also fails to
note any complaints from the veteran of ever having had dark
urine, or other symptoms of hepatitis.
The Board recognizes that the veteran is competent as a
layperson to report that on which he has personal knowledge.
See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However,
there is no evidence of record that the veteran has
specialized medical knowledge to be competent to offer
medical opinion as to diagnosis, cause, or etiology of the
claimed disability. See Grottveit v. Brown , 5 Vet. App. 91.
93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992). The record contains no competent evidence that the
veteran's hepatitis is related to service.
In sum, the preponderance of the evidence is against the
claim of service connection for hepatitis. In making this
decision, the Board has considered the benefit-of-the-doubt-
doctrine; however, as the evidence is not equally balanced,
it does not apply. Gilbert v. Derwinski, 1 Vet. App. at 57-
58; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
ORDER
Entitlement to service connection for hepatitis is denied.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs